Mr. Lenoir. Mr. Chairman, I have a greater objection
on this ground than that which has just been mentioned. I
mean, sir, the legislative power given to the President himself.
It may be admired by some, but not by me. He, sir,
with the Senate, is to make treaties, which are to be the
supreme law of the land. This is a legislative power given
to the President, and implies a contradiction to that part
which says that all legislative power is vested in the two
houses.

Mr. Spaight answered, that it was thought better to put
that power into the hands of the senators as representatives
of the states--that thereby the interest of every state
was equally attended to in the formation of treaties--but
that it was not considered as a legislative act at all.

Mr. Iredell. Mr. Chairman, this is an objection against
the inaccuracy of the sentence. I humbly conceive it will
appear accurate on a due attention. After a bill is passed
by both houses, it is to be shown to the President. Within
a certain time, he is to return it. If he disapproves of it, he
is to state his objections in writing; and it depends on Congress
afterwards to say whether it shall be a law or not.
Now, sir, I humbly apprehend that, whether a law passes
by a bare majority, or by two thirds, (which are required
to concur after he shall have stated objections,) what gives
active operation to it is, the will of the senators and representatives.
The President has no power of legislation. If
he does not object, the law passes by a bare majority; and
if he objects, it passes by two thirds. His power extends
only to cause it to be reconsidered, which secures a greater
probability of its being good. As to his power with respect
to treaties, I shall offer my sentiments on it when we come
properly to it.

Mr. Maclaine intimated, that if any gentleman was out
of order, it was the gentleman from Wilkes (Mr. Lenoir)--
that treaties were the supreme law of the land in all countries,
for the most obvious reasons--that laws, or legislative
acts, operated upon individuals, but that treaties acted
upon states--that, unless they were the supreme law of the
land, they could have no validity at all--that the President
did not act in this case as a legislator, but rather in his
executive capacity.

Mr. Lenoir replied that he wished to be conformable to
the rules of the house; but he still thought the President
was possessed of legislative powers, while he could make
treaties, joined with the Senate.

Mr. Iredell. Mr. Chairman, I think the gentleman is in
order. When treaties are made, they become as valid as
legislative acts. I apprehend that every act of the government,
legislative, executive, or judicial, if in pursuance of
a constitutional power, is the law of the land. These different
acts become the acts of the state by the instrumentality
of its officers. When, for instance, the governor of this
state grants a pardon, it becomes the law of the land, and
is valid. Every thing is the law of the land, let it come from
what power it will, provided it be consistent with the Constitution.

Mr. Lenoir answered, that that comparison did not
hold.

Mr. Iredell continued. If the governor grants a pardon,
it becomes a law of the land. Why? Because he has
power to grant pardons by the Constitution. Suppose this
Constitution is adopted, and a treaty made; that treaty is
the law of the land. Why? Because the Constitution grants
the power of making treaties.

[28 July]

Mr. Porter. Mr. Chairman, there is a power vested in
the Senate and President to make treaties, which shall be
the supreme law of the land. Which among us can call
them to account? I always thought that there could be no
proper exercise of power without the suffrage of the people;
yet the House of Representatives has no power to intermeddle
with treaties. The President and seven senators,
as nearly as I can remember, can make a treaty which will
be of great advantage to the Northern States, and equal
injury to the Southern States. They might give up the rivers
and territory of the Southern States. Yet, in the preamble
of the Constitution, they say all the people have done it.
I should be glad to know what power there is of calling
the President and Senate to account.

Mr. Spaight answered that, under the Confederation,
two thirds of the states might make treaties; that, if the
senators from all the states attended when a treaty was
about to be made, two thirds of the states would have a
voice in its formation. He added, that he would be glad to
ask the gentleman what mode there was of calling the
present Congress to account.

Mr. Porter repeated his objection. He hoped that gentlemen
would not impose on the house; that the President
could make treaties with two thirds of the senate; that the
President, in that case, voted rather in a legislative than in
an executive capacity, which he thought impolitic.

Gov. Johnston. Mr. Chairman, in my opinion, if there
be any difference between this Constitution and the Confederation,
with respect to treaties, the Constitution is
more safe than the Confederation. We know that two
members from each state have a right, by the Confederation,
to give the vote of that state, and two thirds of the
states have a right also to make treaties. By this Constitution,
two thirds of the senators cannot make treaties without
the concurrence of the President. Here is, then, an
additional guard. The calculation that seven or eight senators,
with the President, can make treaties, is totally erroneous.
Fourteen is a quorum; two thirds of which are
ten. It is upon the improbable supposition that they will
not attend, that the objection is founded that ten men,
with the President, can make treaties. Can it be reasonably
supposed that they will not attend when the most important
business is agitated--when the interests of their respective
states are most immediately affected?

. . . . .

Mr. Spencer. Mr. Chairman, I rise to declare my disapprobation
of this, likewise. It is an essential article in our
Constitution, that the legislative, the executive, and the supreme
judicial powers, of government, ought to be forever
separate and distinct from each other. The Senate, in the
proposed government of the United States, are possessed
of the legislative authority in conjunction with the House
of Representatives. They are likewise possessed of the sole
power of trying all impeachments, which, not being restrained
to the officers of the United States, may be intended
to include all the officers of the several states in
the Union. And by this clause they possess the chief of the
executive power; they are, in effect, to form treaties, which
are to be the law of the land; and they have obviously, in
effect, the appointment of all the officers of the United
States. The President may nominate, but they have a negative
upon his nomination, till he has exhausted the number
of those he wishes to be appointed. He will be obliged,
finally, to acquiesce in the appointment of those whom the
Senate shall nominate, or else no appointment will take
place. Hence it is easy to perceive that the President, in
order to do any business, or to answer any purpose in this
department of his office, and to keep himself out of perpetual
hot water, will be under a necessity to form a connection
with that powerful body, and be contented to put
himself at the head of the leading members who compose
it. I do not expect, at this day, that the outline and organization
of this proposed government will be materially altered.
But I cannot but be of opinion that the government
would have been infinitely better and more secure, if the
President had been provided with a standing council, composed
of one member from each of the states, the duration
of whose office might have been the same as that of the
President's office, or for any other period that might have
been thought more proper; for it can hardly be supposed,
if two senators can be sent from each state, who are fit to
give counsel to the President, that one such cannot be
found in each state qualified for that purpose. Upon this
plan, one half the expense of the Senate, as a standing
council to the President in the recess of Congress, would
evidently be saved; each state would have equal weight in
this council, as it has now in the Senate. And what renders
this plan the more eligible is, that two very important consequences
would result from it, which cannot result from
the present plan. The first is, that the whole executive department,
being separate and distinct from that of the legislative
and judicial, would be amenable to the justice of
the land: the President and his council, or either or any of
them, might be impeached, tried, and condemned, for any
misdemeanor in office. Whereas, on the present plan proposed,
the Senate, who are to advise the President, and
who, in effect, are possessed of the chief executive powers,
let their conduct be what it will, are not amenable to the
public justice of their country: if they may be impeached,
there is no tribunal invested with jurisdiction to try them.
It is true that the proposed Constitution provides that,
when the President is tried, the chief justice shall preside.
But I take this to be very little more than a farce. What
can the Senate try him for? For doing that which they have
advised him to do, and which, without their advice, he
would not have done. Except what he may do in a military
capacity--when, I presume, he will be entitled to be tried
by a court martial of general officers--he can do nothing
in the executive department without the advice of the Senate,
unless it be to grant pardons, and adjourn the two
Houses of Congress to some day to which they cannot
agree to adjourn themselves--probably to some term
that may be convenient to the leading members of the
Senate.

I cannot conceive, therefore, that the President can ever
be tried by the Senate with any effect, or to any purpose
for any misdemeanor in his office, unless it should extend
to high treason, or unless they should wish to fix the
odium of any measure on him, in order to exculpate
themselves; the latter of which I cannot suppose will ever
happen.

Another important consequence of the plan I wish had
taken place is that, the office of the President being
thereby unconnected with that of the legislative, as well as
the judicial, he would have that independence which is
necessary to form the intended check upon the acts passed
by the legislature before they obtain the sanction of laws.
But, on the present plan, from the necessary connection
of the President's office with that of the Senate, I have
little ground to hope that his firmness will long prevail
against the overbearing power and influence of the Senate,
so far as to answer the purpose of any considerable check
upon the acts they may think proper to pass in conjunction
with the House of Representatives; for he will soon find
that, unless he inclines to compound with them, they can
easily hinder and control him in the principal articles of
his office. But, if nothing else could be said in favor of the
plan of a standing council to the President, independent
of the Senate, the dividing the power of the latter would
be sufficient to recommend it; it being of the utmost importance
towards the security of the government, and the
liberties of the citizens under it. For I think it must be
obvious to every unprejudiced mind, that the combining
in the Senate the power of legislation, with a controlling
share in the appointment of all the officers of the United
States, (except those chosen by the people,) and the power
of trying all impeachments that may be found against such
officers, invests the Senate at once with such an enormity
of power, and with such an overbearing and uncontrollable
influence, as is incompatible with every idea of safety
to the liberties of a free country, and is calculated to swallow
up all other powers, and to render that body a despotic
aristocracy.

Mr. Porter recommended the most serious consideration
when they were about to give away power; that they
were not only about to give away power to legislate or
make laws of a supreme nature, and to make treaties,
which might sacrifice the most valuable interests of the
community, but to give a power to the general government
to drag the inhabitants to any part of the world as long as
they pleased; that they ought not to put it in the power of
any man, or any set of men, to do so; and that the representation
was defective, being not a substantial, immediate
representation. He observed that, as treaties were the supreme
law of the land, the House of Representatives
ought to have a vote in making them, as well as in passing
them.

Mr. J. M'Dowall. Mr. Chairman: permit me, sir, to
make a few observations, to show how improper it is to
place so much power in so few men, without any responsibility
whatever. Let us consider what number of them is
necessary to transact the most important business. Two
thirds of the members present, with the President, can
make a treaty. Fourteen of them are a quorum, two thirds
of which are ten. These ten may make treaties and alliances.
They may involve us in any difficulties, and dispose
of us in any manner, they please. Nay, eight is a majority
of a quorum, and can do every thing but make treaties.
How unsafe are we, when we have no power of bringing
those to an account! It is absurd to try them before their
own body. Our lives and property are in the hands of
eight or nine men. Will these gentlemen intrust their
rights in this manner?

Mr. Davie. Mr. Chairman, although treaties are mere
conventional acts between the contracting parties, yet, by
the law of nations, they are the supreme law of the land to
their respective citizens or subjects. All civilized nations
have concurred in considering them as paramount to an
ordinary act of legislation. This concurrence is founded on
the reciprocal convenience and solid advantages arising
from it. A due observance of treaties makes nations more
friendly to each other, and is the only means of rendering
less frequent those mutual hostilities which tend to depopulate
and ruin contending nations. It extends and facilitates
that commercial intercourse, which, founded on the
universal protection of private property, has, in a measure,
made the world one nation.

The power of making treaties has, in all countries and
governments, been placed in the executive departments.
This has not only been grounded on the necessity and reason
arising from that degree of secrecy, design, and despatch,
which is always necessary in negotiations between
nations, but to prevent their being impeded, or carried
into effect, by the violence, animosity, and heat of parties,
which too often infect numerous bodies. Both of these reasons
preponderated in the foundation of this part of the
system. It is true, sir, that the late treaty between the
United States and Great Britain has not, in some of the
states, been held as the supreme law of the land. Even in
this state, an act of Assembly passed to declare its validity.
But no doubt that treaty was the supreme law of the land
without the sanction of the Assembly; because, by the Confederation,
Congress had power to make treaties. It was
one of those original rights of sovereignty which were
vested in them; and it was not the deficiency of constitutional
authority in Congress to make treaties that produced
the necessity of a law to declare their validity;
but it was owing to the entire imbecility of the Confederation.

On the principle of the propriety of vesting this power
in the executive department, it would seem that the whole
power of making treaties ought to be left to the President,
who, being elected by the people of the United States at
large, will have their general interest at heart. But that
jealousy of executive power which has shown itself so
strongly in all the American governments, would not admit
this improvement. Interest, sir, has a most powerful
influence over the human mind, and is the basis on which
all the transactions of mankind are built. It was mentioned
before that the extreme jealousy of the little states, and
between the commercial states and the non-importing
states, produced the necessity of giving an equality of suffrage
to the Senate. The same causes made it indispensable
to give to the senators, as representatives of states, the
power of making, or rather ratifying, treaties. Although it
militates against every idea of just proportion that the little
state of Rhode Island should have the same suffrage with
Virginia, or the great commonwealth of Massachusetts, yet
the small states would not consent to confederate without
an equal voice in the formation of treaties. Without the
equality, they apprehended that their interest would be
neglected or sacrificed in negotiations. This difficulty
could not be got over. It arose from the unalterable nature
of things. Every man was convinced of the inflexibility of
the little states in this point. It therefore became necessary
to give them an absolute equality in making treaties.

The learned gentleman on my right, (Mr. Spencer,) after
saying that this was an enormous power, and that
blending the different branches of government was dangerous,
said, that such accumulated powers were inadmissible,
and contrary to all the maxims of writers. It is true,
the great Montesquieu, and several other writers, have laid
it down as a maxim not to be departed from, that the legislative,
executive, and judicial powers should be separate
and distinct. But the idea that these gentlemen had in view
has been misconceived or misrepresented. An absolute
and complete separation is not meant by them. It is impossible
to form a government upon these principles.
Those states who had made an absolute separation of
these three powers their leading principle, have been
obliged to depart from it. It is a principle, in fact, which is
not to be found in any of the state governments. In the
government of New York, the executive and judiciary
have a negative similar to that of the President of the
United States. This is a junction of all the three powers,
and has been attended with the most happy effects. In this
state, and most of the others, the executive and judicial
powers are dependent on the legislature. Has not the legislature
of this state the power of appointing the judges?
Is it not in their power also to fix their compensation?
What independence can there be in persons who are
obliged to be obsequious and cringing for their office and
salary? Are not our judges dependent on the legislature
for every morsel they eat? It is not difficult to discern what
effect this may have on human nature. The meaning of
this maxim I take to be this--that the whole legislative,
executive, and judicial powers should not be exclusively
blended in any one particular instance. The Senate try impeachments.
This is their only judicial cognizance. As to
the ordinary objects of a judiciary--such as the decision of
controversies, the trial of criminals, &c.--the judiciary is
perfectly separate and distinct from the legislative and executive
branches. The House of Lords, in England, have
great judicial powers; yet this is not considered as a blemish
in their constitution. Why? Because they have not the
whole legislative power. Montesquieu, at the same time
that he laid down this maxim, was writing in praise of the
British government. At the very time he recommended
this distinction of powers, he passed the highest eulogium
on a constitution wherein they were all partially blended.
So that the meaning of the maxim, as laid down by him
and other writers, must be, that these three branches must
not be entirely blended in one body. And this system before
you comes up to the maxim more completely than the
favorite government of Montesquieu. The gentleman
from Anson has said that the Senate destroys the independence
of the President, because they must confirm the
nomination of officers. The necessity of their interfering
in the appointment of officers resulted from the same reason
which produced the equality of suffrage. In other
countries, the executive or chief magistrate, alone, nominates
and appoints officers. The small states would not
agree that the House of Representatives should have a
voice in the appointment to offices; and the extreme jealousy
of all the states would not give it to the President
alone. In my opinion, it is more proper as it is than it
would be in either of those cases. The interest of each state
will be equally attended to in appointments, and the choice
will be more judicious by the junction of the Senate to the
President. Except in the appointments of officers, and
making of treaties, he is not joined with them in any instance.
He is perfectly independent of them in his election.
It is impossible for human ingenuity to devise any mode
of election better calculated to exclude undue influence.
He is chosen by the electors appointed by the people. He
is elected on the same day in every state, so that there can
be no possible combination between the electors. The affections
of the people can be the only influence to procure
his election. If he makes a judicious nomination, is it
to be presumed that the Senate will not concur in it? Is it
to be supposed the legislatures will choose the most depraved
men in the states to represent them in Congress?
Should he nominate unworthy characters, can it be reasonably
concluded that they will confirm it? He then
says that the senators will have influence to get themselves
reëlected; nay, that they will be perpetually
elected.

I have very little apprehension on this ground. I take it
for granted that the man who is once a senator will very
probably be out for the next six years. Legislative influence
changes. Other persons rise, who have particular connections
to advance them to office. If the senators stay six
years out of the state governments, their influence will be
greatly diminished. It will be impossible for the most influential
character to get himself reëlected after being out of
the country so long. There will be an entire change in six
years. Such futile objections, I fear, proceed from an aversion
to any general system. The same learned gentleman
says that it would be better, were a council, consisting of
one from every state, substituted to the Senate. Another
gentleman has objected to the smallness of this number.
This shows the impossibility of satisfying all men's minds.
I beg this committee to place these two objections together,
and see their glaring inconsistency. If there were thirteen
counsellors, in the manner he proposes, it would destroy
the responsibility of the President. He must have acted
also with a majority of them. A majority of them is seven,
which would be a quorum. A majority of these would be
four, and every act to which the concurrence of the Senate
and the President is necessary could be decided by these
four. Nay, less than a majority--even one--would suffice
to enable them to do the most important acts. This, sir,
would be the effect of this council. The dearest interests
of the community would be trusted to two men. Had this
been the case, the loudest clamors would have been raised,
with justice, against the Constitution, and these gentlemen
would have loaded their own proposition with the most
virulent abuse.

On a due consideration of this clause, it appears that this
power could not have been lodged as safely any where else
as where it is. The honorable gentleman (Mr. M'Dowall)
has spoken of a consolidation in this government. That is
a very strange inconsistency, when he points out, at the
same time, the necessity of lodging the power of making
treaties with the representatives, where the idea of a consolidation
can alone exist; and when he objects to placing
it in the Senate, where the federal principle is completely
preserved. As the Senate represents the sovereignty of the
states, whatever might affect the states in their political capacity
ought to be left to them. This is the certain means
of preventing a consolidation. How extremely absurd is it
to call that disposition of power a consolidation of the
states, which must to all eternity prevent it! I have only to
add the principle upon which the General Convention
went--that the power of making treaties could nowhere be
so safely lodged as in the President and Senate; and the
extreme jealousy subsisting between some of the states
would not admit of it elsewhere. If any man will examine
the operation of that jealousy, in his own breast, as a citizen
of North Carolina, he will soon feel the inflexibility
that results from it, and perhaps be induced to acknowledge
the propriety of this arrangement.

Mr. M'Dowall declared, that he was of the same opinion
as before, and that he believed the observations which
the gentleman had made, on the apparent inconsistency of
his remarks, would have very little weight with the committee;
that giving such extensive powers to so few men in
the Senate was extremely dangerous; and that he was not
the more reconciled to it from its being brought about by
the inflexibility of the small, pitiful states to the north. He
supposed that eight members in the Senate from those
states, with the President, might do the most important
acts.

Mr. Spaight. Mr. Chairman, the gentleman objects to
the smallness of the number, and to their want of responsibility.
He argues as if the senators were never to attend,
and as if the northern senators were to attend more regularly
than those from the south. Nothing can be more
unreasonable than to suppose that they will be absent on
the most important occasions. What responsibility is there
in the present Congress that is not in the Senate? What
responsibility is there in our state legislature? The senators
are as responsible as the members of our legislature. It is
to be observed, that though the senators are not impeachable,
yet the President is. He may be impeached and punished
for giving his consent to a treaty, whereby the interest
of the community is manifestly sacrificed.

Mr. Spencer. Mr. Chairman, the worthy gentleman
from Halifax has endeavored to obviate my objections
against the want of responsibility in the President and senators,
and against the extent of their power. He has not
removed my objections. It is totally out of their power to
show any degree of responsibility. The executive is tried
by his advisers. The reasons I urged are so cogent and
strong with me, that I cannot approve of this clause. I can
see nothing of any weight against them. [Here Mr. Spencer
spoke so low that he could not distinctly be heard.] I
would not give the President and senators power to make
treaties, because it destroys their responsibility. If a bad
treaty be made, and he impeached for it, the Senate will
not pronounce sentence against him, because they advised
him to make it. If they had legislative power only, it would
be unexceptionable; but when they have the appointment
of officers, and such extensive executive powers, it gives
them such weight as is inadmissible. Notwithstanding what
gentlemen have said in defence of the clause, the influence
of the Senate still remains equally formidable to me. The
President can do nothing unless they concur with him. In
order to obtain their concurrence, he will compromise
with them. Had there been such a council as I mentioned,
to advise him, the Senate would not have had such dangerous
influence, and the responsibility of the President
would have been secured. This seems obviously clear to be
the case.

Mr. Porter. Mr. Chairman, I only rise to make one observation
on what the gentleman has said. He told us, that
if the Senate were not amenable, the President was. I beg
leave to ask the gentleman if it be not inconsistent that
they should punish the President, whom they advised
themselves to do what he is impeached for. My objection
still remains. I cannot find it in the least obviated.

Mr. Bloodworth desired to be informed whether treaties
were not to be submitted to the Parliament in Great
Britain before they were valid.

Mr. Iredell. Mr. Chairman, the objections to this clause
deserve great consideration. I believe it will be easy to obviate
the objections against it, and that it will be found to
have been necessary, for the reasons stated by the gentleman
from Halifax, to vest this power in some body composed
of representatives of states, where their voices
should be equal; for in this case the sovereignty of the
states is particularly concerned, and the great caution of
giving the states an equality of suffrage in making treaties,
was for the express purpose of taking care of that sovereignty,
and attending to their interests, as political bodies,
in foreign negotiations. It is objected to as improper, because,
if the President or Senate should abuse their trust,
there is not sufficient responsibility, since he can only be
tried by the Senate, by whose advice he acted; and the
Senate cannot be tried at all. I beg leave to observe that,
when any man is impeached, it must be for an error of the
heart, and not of the head. God forbid that a man, in any
country in the world, should be liable to be punished for
want of judgment. This is not the case here. As to errors
of the heart, there is sufficient responsibility. Should these
be committed, there is a ready way to bring him to punishment.
This is a responsibility which answers every purpose
that could be desired by a people jealous of their liberty. I
presume that, if the President, with the advice of the Senate,
should make a treaty with a foreign power, and that
treaty should be deemed unwise, or against the interest of
the country, yet if nothing could be objected against it but
the difference of opinion between them and their constituents,
they could not justly be obnoxious to punishment.
If they were punishable for exercising their own judgment,
and not that of their constituents, no man who regarded
his reputation would accept the office either of a
senator or President. Whatever mistake a man may make,
he ought not to be punished for it, nor his posterity rendered
infamous. But if a man be a villain, and wilfully
abuse his trust, he is to be held up as a public offender,
and ignominiously punished. A public officer ought not to
act from a principle of fear. Were he punishable for want
of judgment, he would be continually in dread; but when
he knows that nothing but real guilt can disgrace him, he
may do his duty firmly, if he be an honest man; and if he
be not, a just fear of disgrace may, perhaps, as to the public,
have nearly the effect of an intrinsic principle of virtue.
According to these principles, I suppose the only instances,
in which the President would be liable to impeachment,
would be where he had received a bribe, or had
acted from some corrupt motive or other. If the President
had received a bribe, without the privity or knowledge of
the Senate, from a foreign power, and, under the influence
of that bribe, had address enough with the Senate,
by artifices and misrepresentations, to seduce their consent
to a pernicious treaty,--if it appeared afterwards that this
was the case, would not that Senate be as competent to try
him as any other persons whatsoever? Would they not exclaim
against his villany? Would they not feel a particular
resentment against him, for being made the instrument of
his treacherous purposes? In this situation, if any objection
could be made against the Senate as a proper tribunal, it
might more properly be made by the President himself,
lest their resentment should operate too strongly, rather
than by the public, on the ground of a supposed partiality.
The President must certainly be punishable for giving
false information to the Senate. He is to regulate all intercourse
with foreign powers, and it is his duty to impart to
the Senate every material intelligence he receives. If it
should appear that he has not given them full information,
but has concealed important intelligence which he ought
to have communicated, and by that means induced them
to enter into measures injurious to their country, and
which they would not have consented to had the true state
of things been disclosed to them,--in this case, I ask
whether, upon an impeachment for a misdemeanor upon
such an account, the Senate would probably favor him.
With respect to the impeachability of the Senate, that is a
matter of doubt.

There have been no instances of impeachment for legislative
misdemeanors; and we shall find, upon examination,
that the inconveniences resulting from such impeachments
would more than preponderate the advantages.
There is no greater honor in the world than being the
representative of a free people. There is no trust on which
the happiness of the people has a greater dependence. Yet
who ever heard of impeaching a member of the legislature
for any legislative misconduct? It would be a great check
on the public business, if a member of the Assembly was
liable to punishment for his conduct as such. Unfortunately,
it is the case, not only in other countries, but even
in this, that division and differences in opinion will continually
arise. On many questions there will be two or more
parties. These often judge with little charity of each other,
and attribute every opposition to their own system to an ill
motive. We know this very well from experience; but, in
my opinion, this constant suspicion is frequently unjust. I
believe, in general, both parties really think themselves
right, and that the majority of each commonly act with
equal innocence of intention. But, with the usual want of
charity in these cases, how dangerous would it be to
make a member of the legislature liable to impeachment!
A mere difference of opinion might be interpreted,
by the malignity of party, into a deliberate, wicked
action.

It therefore appears to me at least very doubtful
whether it would be proper to render the Senate impeachable
at all; especially as, in the branches of executive government,
where their concurrence is required, the President
is the primary agent, and plainly responsible, and
they, in fact, are but a council to validate proper, or restrain
improper, conduct in him; but if a senator is impeachable,
it could only be for corruption, or some other
wicked motive, in which case, surely those senators who
had acted from upright motives would be competent to try
him. Suppose there had been such a council as was proposed,
consisting of thirteen, one from each state, to assist
the President in making treaties, &c.; more general alarm
would have been excited, and stronger opposition made to
this Constitution, than even at present. The power of the
President would have appeared more formidable, and the
states would have lost one half of their security; since, instead
of two representatives, which each has now for those
purposes, they would have had but one. A gentleman
from New Hanover has asked whether it is not the practice,
in Great Britain, to submit treaties to Parliament, before
they are esteemed as valid. The king has the sole authority,
by the laws of that country, to make treaties. After
treaties are made, they are frequently discussed in the two
houses, where, of late years, the most important measures
of government have been narrowly examined. It is usual
to move for an address of approbation; and such has been
the complaisance of Parliament for a long time, that this
seldom hath been withheld. Sometimes they pass an act in
conformity to the treaty made; but this, I believe, is not
for the mere purpose of confirmation, but to make alterations
in a particular system, which the change of circumstances
requires. The constitutional power of making treaties
is vested in the crown; and the power with whom a
treaty is made considers it as binding, without any act of
Parliament, unless an alteration by such is provided for in
the treaty itself, which I believe is sometimes the case.
When the treaty of peace was made in 1763, it contained
stipulations for the surrender of some islands to the
French. The islands were given up, I believe, without any
act of Parliament. The power of making treaties is very
important, and must be vested somewhere, in order to
counteract the dangerous designs of other countries, and
to be able to terminate a war when it is begun. Were it
known that our government was weak, two or more European
powers might combine against us. Would it not be
politic to have some power in this country, to obviate this
danger by a treaty? If this power was injudiciously limited,
the nations where the power was possessed without restriction
would have greatly the advantage of us in negotiation;
and every one must know, according to modern policy, of
what moment an advantage in negotiation is. The honorable
member from Anson said that the accumulation of all
the different branches of power in the Senate would be
dangerous. The experience of other countries shows that
this fear is without foundation. What is the Senate of
Great Britain opposed to the House of Commons, although
it be composed of an hereditary nobility, of vast
fortunes, and entirely independent of the people? Their
weight is far inferior to that of the Commons. Here is a
strong instance of the accumulation of powers of the different
branches of government without producing any inconvenience.
That Senate, sir, is a separate branch of the
legislature, is the great constitutional council of the crown,
and decides on lives and fortunes in impeachments, besides
being the ultimate tribunal for trying controversies
respecting private rights. Would it not appear that all
these things should render them more formidable than
the other house? Yet the Commons have generally been
able to carry every thing before them. The circumstance
of their representing the great body of the people, alone
gives them great weight. This weight has great authority
added to it, by their possessing the right (a right given to
the people's representatives in Congress) of exclusively
originating money bills. The authority over money will do
every thing. A government cannot be supported without
money. Our representatives may at any time compel the
Senate to agree to a reasonable measure, by withholding
supplies till the measure is consented to. There was a great
debate, in the Convention, whether the Senate should
have an equal power of originating money bills. It was
strongly insisted, by some, that they should; but at length
a majority thought it unadvisable, and the clause was
passed as it now stands. I have reason to believe that our
representatives had a great share in establishing this excellent
regulation, and in my opinion they deserve the public
thanks for it. It has been objected that this power must
necessarily injure the people, inasmuch as a bare majority
of the Senate might alone be assembled, and eight would
be sufficient for a decision. This is on a supposition that
many of the senators would neglect attending. It is to be
hoped that the gentlemen who will be honored with seats
in Congress will faithfully execute their trust, as well in
attending as in every other part of their duty. An objection
of this sort will go against all government whatever. Possible
abuse, and neglect of attendance, are objections which
may be urged against any government which the wisdom
of man is able to construct. When it is known of how much
importance attendance is, no senator would dare to incur
the universal resentment of his fellow-citizens by grossly
absenting himself from his duty. Do gentlemen mean that
it ought to have been provided, by the Constitution, that
the whole body should attend before particular business
was done? Then it would be in the power of a few men,
by neglecting to attend, to obstruct the public business,
and possibly bring on the destruction of their country. If
this power be improperly vested, it is incumbent on gentlemen
to tell us in what body it could be more safely and
properly lodged.

I believe, on a serious consideration, it will be found that
it was necessary, for the reasons mentioned by the gentleman
from Halifax, to vest the power in the Senate, or in
some other body representing equally the sovereignty of
the states, and that the power, as given in the Constitution,
is not likely to be attended with the evils which some gentlemen
apprehend. The only real security of liberty, in any
country, is the jealousy and circumspection of the people
themselves. Let them be watchful over their rulers. Should
they find a combination against their liberties, and all
other methods appear insufficient to preserve them, they
have, thank God, an ultimate remedy. That power which
created the government can destroy it. Should the government,
on trial, be found to want amendments, those
amendments can be made in a regular method, in a mode
prescribed by the Constitution itself. Massachusetts, South
Carolina, New Hampshire, and Virginia, have all proposed
amendments; but they all concurred in the necessity
of an immediate adoption. A constitutional mode of altering
the Constitution itself is, perhaps, what has never been
known among mankind before. We have this security, in
addition to the natural watchfulness of the people, which
I hope will never be found wanting. The objections I have
answered deserved all possible attention; and for my part,
I shall always respect that jealousy which arises from the
love of public liberty.

Mr. Spencer. Mr. Chairman, I think that no argument
can be used to show that this power is proper. If the whole
legislative body--if the House of Representatives do not
interfere in making treaties, I think they ought at least to
have the sanction of the whole Senate. The worthy gentleman
last up has mentioned two cases wherein he supposes
that impeachments will be fairly tried by the senators. He
supposes a case where the President had been guilty of
corruption, and by that means had brought over and got
the sanction of two thirds of the senators; and that, if it
should be afterwards found that he brought them over by
artifices, they would be a proper body to try him. As they
will be ready to throw the odium off their own shoulders
on him, they may pronounce sentence against him. He
mentions another case, where, if a majority was obtained
by bribing some of the senators, those who were innocent
might try those who were guilty. I think that these cases
will happen but rarely in comparison to other cases, where
the senators may advise the President to deviate from his
duty, and where a majority of them may be guilty. And
should they be tried by their own body when thus guilty,
does not every body see the impropriety of it? It is universally
disgraceful, odious, and contemptible, to have a trial
where the judges are accessory to the misdemeanor of the
accused. Whether the accusation against him be true or
not, if afraid for themselves, they will endeavor to throw
the odium upon him. There is an extreme difference between
the case of trying this officer and that of trying their
own members. They are so different, that I consider they
will always acquit their own members; and if they condemn
the President, it will be to exonerate themselves. It
appears to me that the powers are too extensive, and not
sufficiently guarded. I do not wish that an aristocracy
should be instituted. An aristocracy may arise out of this
government, though the members be not hereditary. I
would therefore wish that every guard should be placed,
in order to prevent it. I wish gentlemen would reflect that
the powers of the Senate are so great in their legislative
and judicial capacities, that, when added to their executive
powers, particularly their interference in the appointment
of all officers in the continent, they will render their power
so enormous as to enable them to destroy our rights and
privileges. This, sir, ought to be strictly guarded against.

Mr. Iredell. Mr. Chairman, the honorable gentleman
must be mistaken. He suggests that an aristocracy will arise
out of this government. Is there any thing like an aristocracy
in this government? This insinuation is uncandidly
calculated to alarm and catch prejudices. In this government
there is not the least symptom of an aristocracy,
which is, where the government is in a select body of men
entirely independent of the people; as, for instance, an hereditary
nobility, or a senate for life, filling up vacancies
by their own authority. Will any member of this government
hold his station by any such tenure? Will not all authority
flow, in every instance, directly or indirectly from
the people? It is contended, by that gentleman, that the
addition of the power of making treaties to their other
powers, will make the Senate dangerous; that they would
be even dangerous to the representatives of the people.
The gentleman has not proved this in theory. Whence will
he adduce an example to prove it? What passes in England
directly disproves his assertion. In that country, the representatives
of the people are chosen under undue influence;
frequently by direct bribery and corruption. They
are elected for seven years, and many of the members
hold offices under the crown--some during pleasure, others
for life. They are also not a genuine representation of
the people, but, from a change of circumstances, a mere
shadow of it. Yet, under these disadvantages, they having
the sole power of originating money bills, it has been
found that the power of the king and lords is much less
considerable than theirs. The high prerogatives of the
king, and the great power and wealth of the lords, have
been more than once mentioned in the course of the debates.
If, under such circumstances, such representatives,--mere
shadows of representatives,--by having the
power of the purse, and the sacred name of the people, to
rely upon, are an overmatch for the king and lords, who
have such great hereditary qualifications, we may safely
conclude that our own representatives, who will be a genuine
representation of the people, and having equally the
right of originating money bills, will, at least, be a match
for the Senate, possessing qualifications so inferior to those
of the House of Lords in England.

It seems to be forgotten that the Senate is placed there
for a very valuable purpose--as a guard against any attempt
of consolidation. The members of the Convention
were as much averse to consolidation as any gentleman on
this floor; but without this institution, (I mean the Senate,
where the suffrages of the states are equal,) the danger
would be greater. There ought to be some power given to
the Senate to counteract the influence of the people by
their biennial representation in the other house, in order
to preserve completely the sovereignty of the states. If the
people, through the medium of their representatives, possessed
a share in making treaties and appointing officers,
would there not be a greater balance of power in the
House of Representatives than such a government ought
to possess? It is true that it would be very improper if the
Senate had authority to prevent the House of Representatives
from protecting the people. It would be equally so
if the House of Representatives were able to prevent the
Senate from protecting the sovereignty of the states. It is
probable that either house would have sufficient authority
to prevent much mischief. As to the suggestion of a tendency
to aristocracy, it is totally groundless. I disdain every
principle of aristocracy. There is not a shadow of an aristocratical
principle in this government. The President is
only chosen for four years--liable to be impeached--and
dependent on the people at large for his reëlection. Can
this mode of appointment be said to have an aristocratical
principle in it? The Senate is chosen by the legislatures.
Let us consider the example of other states, with respect
to the construction of their Senate. In this point, most of
them differ; though they almost all concur in this, that the
term of election for senators is longer than that for representatives.
The reason of this is, to introduce stability
into the laws, and to prevent that mutability which would
result from annual elections of both branches. In New
York, they are chosen for three years; in Virginia, they are
chosen for four years; and in Maryland, they are chosen
for five years. In this Constitution, although they are chosen
for six years, one third go out every second year, (a
method pursued in some of the state constitutions,) which
at the same time secures stability to the laws, and a due
dependence on the state legislatures. Will any man say that
there are any aristocratical principles in a body who have
no power independent of the people, and whereof one
third of the members are chosen, every second year, by a
wise and select body of electors? I hope, therefore, that it
will not be considered that there are any aristocratical
principles in this government, and that it will be given up
as a point not to be contended for. The gentleman contends
that a council ought to be instituted in this case. One
objection ought to be compared with another. It has been
objected against the Constitution that it will be productive
of great expense. Had there been a council, it would have
been objected that it was calculated for creating new offices,
and increasing the means of undue influence.
Though he approves of a council, others would not.

Elliot, Jonathan, ed. The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787. . . . 5 vols. 2d ed. 1888. Reprint. New York: Burt Franklin, n.d.